Burial Wishes - Binding Or Not?

When drafting a will, many people are eager to include specific instructions about their burial or cremation wishes. This is understandable. Where your remains are laid to rest for eternity seems like a very important part of the dying process. Eternity does of course seem like a long time. But, are burial wishes included in your will legally binding? The short answer is no. While your burial preferences may be expressed in your will, they are not enforceable by law.

Who legally has the right to decide your burial arrangements?

In Queensland, the legal position is that the control of funeral and burial arrangements of the deceased typically rests with the executor of the Estate. An executor is the person tasked with carrying out the terms of your will, including the decision making around your funeral arrangements. If you do not have a will this responsibility will fall on the person with right to apply for Letters of Administration. Depending on your situation if you die without a will (also known as dying intestate) your executor is typically your spouse or child. In Queensland, Rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) provides the people with priority when applying for Letters of Administration for matters of intestacy.

What about funeral insurance?

Many people turn to funeral insurance to ensure that their funeral arrangements are clearly set out.  Funeral insurance is not compulsory, and we wouldn’t say its an imperative. However, it is important to ensure that if you do insist on funeral insurance that your benefits eventually go to the intended recipient by carefully checking the policy and who you have designated as beneficiary.

Typically, people assume that their funeral insurance payout will automatically go to their executor. However this is not the case. To ensure your insurance is being paid out to the correct person:-

1. Carefully choose your beneficiary – Ensure the policy names the correct person, being your executor.
2. Keep Your Policy Up to Date – Life changes may require you to update our beneficiary.
3. Communicate Your Wishes – Inform your beneficiary of their role and how the funds should be used.

Overall, funeral wishes are a bit of a grey area. They might be followed but they aren’t binding. If you want something unique its best to let the people around, you know. If you’re needing some inspiration for a ‘unique approach’ to burial and cremation try looking in to how Keith Richards commemorated his late father. Unique is probably an understatement for what happened there….